Wednesday, August 21, 2013

How can you judge Big Data surveillance if you don't understand email?

by David Atkins

Big Data is a big and complex problem. It's obvious that the government figures, as Digby said, that the 4th Amendment is an antiquated inconvenience in a world where Target knows you're pregnant before your family does, and Facebook knows more about most of its users than the Stasi ever could have. It's a thorny issue, one that will grow in significance as we approach a future of individualized genomic medicine and statistically modeled problem solving in the public policy arena.

It's also clear, though, that the potential for governmental abuse of Big Data is very large, and the consequences of that abuse are very dangerous. It's critical, then, that the highest court in the land have a firm grasp of these issues, in order to strike the right balance between 4th Amendment protections and the promise and peril of Big Data.

Elena Kagan says she and her fellow Supreme Court justices aren't the most tech savvy group of people and still communicate with each other the same way they did when she was a clerk in 1987: with paper memos.

In an appearance in Providence on Tuesday, Kagan acknowledged the justices have a ways to go to understand technologies such as Facebook, Twitter and even email.

"It's a challenge for us," Kagan said, while also noting that she herself uses email, goes online and reads blogs...

Kagan said the justices often turn to their clerks, who are much younger, to help them understand new technologies.

But they also try to learn on their own. In one case, involving violent video games the first year she was on the court, justices who had never played the games before dove in and gave them a try, Kagan said.

"It was kind of hilarious," she said.

She didn't say which games they played.

I'm not sure what can be done to solve this problem, but Constitutional issues in a rapidly changing world can't be adequately judged by people who are 25 years behind the times, relying on secondhand descriptions of the modern world from staff. How could people who barely comprehend email possibly make coherent judgments about the intricacies of electronic data collection methods?

Much of the Administration's case on NSA overreach is that the Supreme Court has declared all its activity legal under the 4th Amendment. Maybe so, but it appears that that's not saying much.